Late last month, the U.S. Supreme Court issued a decision allowing the Trump Administration to begin enforcing its travel ban against all refugees and against individuals from six "banned" countries--Iran, Libya, Somalia, Sudan, Syria, and Yemen.

Travel Ban Redux, or Once More Into the Breach (of Decorum), Dear Friends

Since the Court's decision is (to put it kindly) a little vague, it was initially unclear how exactly the Administration would enforce its executive order ("EO"). Now, the Department of Homeland Security and the State Department have issued some guidance, and so we have a better idea about the effects of the EO. Of course, given that the Supreme Court's decision is subject to interpretation, we can expect more litigation in the weeks and months ahead, but for today, I want to discuss how the EO will likely be enforced with regards to asylum seekers, asylees, and refugees.
Asylum Seekers: Asylum seekers are people who are physically present in the United States and who have a pending asylum case. The short answer for asylum seekers from banned countries is that the EO has essentially no effect on your case (the longer answer is here). Cases will move forward and be adjudicated as before (i.e., slowly). I should note that since the beginning of the Trump Administration, we have had several cases approved, including cases from Muslim countries and banned countries.
Asylees and Refugees Who Have Already Been Resettled in the United States: Asylees are people who have been granted asylum by the U.S. government. Refugees in this section refers to people approved for refugee status overseas who have already been resettled in the United States. According to a DHS FAQ sheet (question # 11):

Returning refugees and asylees, i.e., individuals who have already been granted asylum or refugee status in the United States, are explicitly excluded from this Executive Order. As such, they may continue to travel abroad and return to the United States consistent with existing requirements.

This means that if you already received asylum, or if you were already resettled in the U.S. as a refugee, you can travel outside the U.S. and return, and the EO does not affect you. However, if you are from one of the "banned" countries, it is a good idea to keep an eye on the news to make sure there are no future changes that might affect your ability to return (one helpful website is the American Immigration Council).

Also, according to DHS (question # 22), people who received a green card based on asylee or refugee status are not affected by the EO.

Asylees and refugees can file for their family members (spouses and minor, unmarried children) to come to the United States, and the EO does not block those family members from coming here. According to DHS (question # 34), "Family members planning to join refugees or asylees are only approved for travel if a bona fide relationship to a spouse or parent in the United States exists. Therefore, if the relationship were confirmed, the travel suspension would not apply." (see also question # 36). So asylees who have filed I-730 petitions should not be prevented from reuniting with their family members in the U.S.
Refugees Who Are Waiting to Come to the U.S. for the First Time: It is important to note that all refugees, even people from countries that are not banned, are affected by the EO. According to DHS (question # 31), "Under the Executive Order as limited by the Supreme Court’s decision, any refugee, regardless of nationality, is prevented from admission to the United States unless he or she (1) demonstrates a bona fide relationship with a person or entity in the United States or (2) obtains a national interest waiver from the Department of State or CBP [Customs and Border Protection]."

The EO blocks admission of all refugees (other than those who meet an exception to the rule) for 120 days. According to the U.S. State Department, there are exceptions for "those refugees who are in transit and booked for travel," though these people will likely all be in the U.S. by now.

According to DHS (question # 29), refugees can still come to the U.S. if they have a "close" family relationship with someone already here. DHS interprets this to mean:

[A] parent (including parent-in-law), spouse, child, adult son or daughter, fiancé(e), son-in-law, daughter-in-law, and sibling, whether whole or half. This includes step relationships. However, “close family” does not include grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-in-law and sisters-in-law and any other “extended” family members.

Certainly we can expect this interpretation to be the subject of litigation. Why is a half-sibling a close relative, but a grandparent is not?
Also, a refugee with a bona fide relationship to an "entity" in the United States is still eligible to travel here, but what this means is also unclear. According to a senior official at the State Department:

As regards relationships with entities in the United States, these need to be formal, documented, and formed in the ordinary course of events rather than to evade the executive order itself. Importantly, I want to add that the fact that a resettlement agency in the United States has provided a formal assurance for refugees seeking admission is not sufficient, in and of itself, to establish a bona fide relationship under the ruling. We’re going to provide additional information to the field on this.

I expect we will see litigation on this point as well. Litigation means delay, and so the likely effect of the EO on refugees will be to greatly reduce the number of people coming to the United States.

Blocking refugees from resettling in the U.S. has been a goal of the Trump Administration since the beginning, and it is one reason why Mr. Trump was elected in the first place. So, like it or not (and obviously, I don't), this is what democracy looks like. But of course the result is that innocent people will die, and it is all the more reason for those of us who support our refugee program to try to convince the general public on this point, to work with our representatives in Congress, and to litigate in court.

The EO's impact on nationals of the six banned countries and on all refugees is temporary, at least for now. The Supreme Court will take up the merits of the EO this fall, and the President may issue new EOs (and Congress may pass laws that impact immigration). In essence, all this is a moving target, and so asylees, asylum seekers, and refugees need to keep abreast of any changes. We also have to keep working hard, in order to protect victims of persecution and to defend our nation's values, which these days seem in grave jeopardy.

Days after President Trump took office, he moved to implement one of his campaign promises: To bar Muslims, refugees, and others from coming to the United States. Courts were not amused, and blocked significant portions of the President's executive orders (thanks largely to the brilliant work of lawyers at the ACLU and at several states attorneys offices). The President tried again, with a new, more limited executive order ("EO"). The new EO was also severely limited by the courts.

You'd think a bunch of people in burkas would be a bit more sympathetic to Muslims.

But now, the Supreme Court has spoken, and the EO is back, at least in part. So what's the story? Here is a nice summary (with some comments by yours truly) of where we are now, courtesy of Aaron Reichlin-Melnick at the American Immigration Council (and if you want to do something to help resist the travel ban, consider donating to the AIC--they are a terrific organization that does yeoman's work in all areas of the immigration field):

"[The] the Court ruled that the government can only enforce the travel ban against foreign nationals who do not have 'a credible claim of a bona fide relationship with a person or entity in the United States.'

"What this means is that individuals from the six countries [Iran, Libya, Somalia, Sudan, Syria, and Yemen] will be permitted to enter the United States if they have a 'close familial relationship' with someone already here or if they have a 'formal, documented' relationship with an American entity formed 'in the ordinary course' of business. However, the Court said that such relationships cannot be established for the purpose of avoiding the travel ban. The government will likely begin applying the travel ban in the limited fashion permitted by the Supreme Court on June 29, 2017.

"Who is likely to be allowed to enter the United States?

Individuals who have valid immigrant or non-immigrant visas issued on or before June 26, 2017: These individuals are not included in the travel ban [However, it seems to me that the decision leaves open the possibility of a new EO where such people are banned, and so I am concerned about that as well].

Individuals with visas coming to live or visit with family members: The Court’s order is clear that individuals who 'wish [] to enter the United States to live with or visit a family member' have close familial relationships. The Court used both a spouse and a mother-in-law as examples of qualifying relationships, but it is unclear whether more distant relatives would qualify.

Students who have been admitted to a U.S. university, workers who have accepted offers of employment with U.S. companies, and lecturers invited to address an American audience: The Court provided these three examples of individuals who have credible claims of a bona fide relationship to an American entity.

Other types of business travelers: It is unclear whether individuals with employment-based visas that do not require a petitioning employer will be able to demonstrate the requisite relationship with a U.S. entity.

Refugees: Most refugees processed overseas have family or other connections to the United States including with refugee resettlement agencies [I read this a bit more pessimistically--I do not know whether a pre-existing relationship with a resettlement agency is enough to avoid the ban]. The Court ruled that such individuals may not be excluded even if the 50,000 [person] cap on refugees has been reached or exceeded.

"Who may have trouble entering the United States?

Individuals who form bona fide relationships with individuals or entities in the United States after June 26, 2017: The Court’s decision is not clear on whether it is prospective or retrospective only. Individuals who form such relationships to avoid the travel ban are barred from entering.

Tourists: Nationals of the designated countries who are not planning to visit family members in the United States and who are coming for other reasons (including sight-seeing) may be barred from entering [I also read this more pessimistically--it seems to me that anyone from a banned country who does not merit an exception as discussed in the decision will be denied a visa, including people coming to the U.S. for business, pleasure or medical treatment]."

As I read the decision and the EO, asylum seekers who are already in the United States, as well as people who have asylum or have a green card based on asylum, are not blocked from traveling and re-entering the country. They are also not blocked from receiving additional immigration benefits (like asylum, a green card, a work permit, travel documents or naturalization). However, the proof will be in the implementation--how the Department of Homeland Security ("DHS") interprets and applies the Supreme Court decision in actual, real-life cases.

In that regard, I agree with Justice Thomas, who "fear[s] that the Court's remedy will prove unworkable" and will invite a "flood of litigation." Who is a qualifying relative for purposes of this decision? Must that person be a U.S. citizen? Or can the person be a resident or an asylee (as in a refugee/asylee following-to-join petition, form I-730)? Could the qualifying relative simply be someone here on a work visa or a visitor visa? What if the person is here illegally? And what is a business relationship, and how do we know whether it is bona fide or created solely for the purpose of subverting the EO?

In short, while the Supreme Court decision is reasonably clear for some aliens, it leaves large gray areas that will require interpretation, meaning more litigation. Such litigation is expensive and time consuming, and so the Court's decision is likely to leave some people who might qualify to come here stranded, depending on how DHS implements the EO, and depending on whether they can get legal help. Overall, that's not a great situation to be in.

Finally, yesterday's decision perhaps telegraphs where the Justices will come down on the merits of the EO when they look at the case this fall (the Court's decision relates only to whether to stop implementation of the EO pending a decision on the merits). Three Justices (Thomas, Alito, and Gorsuch) seem likely to allow a broader version of the ban to go forward. Given what we see in this decision, it may be that the other Justices are more skeptical of the ban and will limited it in some ways (and with luck, if the Trump Administration fears that the Court will limit the ban, it may just declare victory and allow the EO to expire, as originally intended).

All this remains to be seen, but for now, anyone from a banned country should pay attention to how the EO is implemented in the coming days, and perhaps avoid traveling outside the U.S. until we know more.

One of my professional goals in life is to get a published decision from the Board of Immigration Appeals ("BIA"). It won't be easy--the Board publishes only about one case out of every 1,000 (I wrote about this problem in a blog post called, The Unbearable Lightness of BIA-ing). If the Board could publish more cases, it would provide better guidance to the nation's Immigration Judges and would probably result in more consistency across the country. Alas, it seems unlikely that the BIA will take my suggestion anytime soon.
I did have a recent case that I thought might stand a chance of publication. As far as I know, it was an issue of first impression (meaning that there are no other published cases discussing the same topic). It is also a fairly common issue, so some guidance from the Board would have been appropriate. The bad news is that my dreams of publishing glory have been shattered, as the Board issued an unpublished decision in my case. But the good news is, we won. And perhaps our unpublished victory might be helpful to others who are in a similar situation.
Unlike published BIA decisions, unpublished decisions are not binding on Immigration Judges. However, they are "persuasive," meaning that if you can find an unpublished case on point, you can submit it to the Judge, who will hopefully consider it. The Executive Office for Immigration Review (the office that administers the BIA and the Immigration Courts) does not release unpublished decisions, but fortunately, there is a sort-of underground network led by the legendary Dan Kowalski, where attorneys can submit their unpublished decisions and make them available to others.
My case centered on a legal construct called "firm resettlement." An alien who has been "firmly resettled" in a third country is ineligible for asylum. See INA § 208(b)(1)(B)(2)(vi). My client's husband had been a high-ranking member of his country's government. When the government turned against him, he and the rest of the family fled to a neighboring country, which granted the family asylum--hence, they were firmly resettled in a third country. As a result of being firmly resettled, the Immigration Judge ("IJ") denied asylum, but granted Withholding of Removal as to the home country, and ordered my client and her children deported to the third country.
During the pendency of the BIA appeal, the home government assassinated my client's husband while he was residing in the third country. After the assassination, DHS agreed that the case should be remanded to the IJ.
On remand, we presented evidence that my client could not return to the third country, as she no longer had any status there. We also presented evidence that it was no longer safe for her in the third country.
DHS argued that even if she could not return to the third country, she had been firmly resettled there, and that she was thus barred from asylum. The lawyer described firm resettlement as a door. Once you pass through it, you are forever barred from asylum. When you read the case law (and the primary case on this point is Matter of A-G-G-, 25 I&N Dec. 486 (BIA 2011)), the government's argument is not unreasonable. Though, in fact, while Matter of A-G-G- lays out a framework for the firm resettlement analysis, it does not cover the situation in our case, where the country of firm resettlement somehow becomes unsafe.
Ultimately, the BIA accepted one of several arguments we presented. The Board held:

The intent of the firm resettlement bar is to disqualify asylum applicants who have previously found another country of refuge, not another country in which he or she faces a danger of persecution.... Given respondent's situation with regard to [the third country], we conclude that, even assuming she otherwise would be viewed as having firmly resettled in that country, she is not barred from asylum.
Id. (emphasis in original). Thus, the Board went beyond the analysis of Matter of A-G-G- and looked to the intent of the firm resettlement bar. The intent, the BIA says, was only to bar "aliens who had already found shelter and begun new lives in other countries." Id. (emphasis in original) (citing Rosenberg v. Yee Chien Woo, 402 U.S. 49, 56 (1971)).
It seems to me that the Board's emphasis on the intent of the bar is significant. If you only read the firm resettlement bar (INA § 208(b)(1)(B)(2)(vi)) and Matter of A-G-G-, you could reasonably conclude--like the DHS attorney and the IJ in my case--that once a person is firmly resettled, she is forever barred from asylum. But that is not the conclusion the Board has now reached.
I am glad for the result and for my clients, but I am disappointed that the BIA chose not to publish this decision. The issue that my clients faced--where the country of resettlement is unsafe--is not uncommon. A number of my clients have faced similar situations, and I suspect that they are not unique. A published decision would have helped clarify matters and provided better guidance to our country's Immigration Judges.
Maybe I am asking for too much. Maybe I should just be happy with what we got. Maybe I am being a big jerk for looking this gift horse in the mouth. But I can't help but think that if the BIA would publish more decisions--especially in cases where there is no existing precedent--our Immigration Court system would be more consistent and more efficient. And so while I am thankful that we received a good decision from the Board in this particular case, I am also thinking about how much more good the Board could do if it made a concerted effort to fulfill its role as "the highest administrative body for interpreting and applying immigration laws," and if it would publish more cases.

Studies about immigrants and refugees tend to be a sort-of Rorschach test: For those who support higher levels of migration, they show that immigrants contribute positively to our society; for those who want to restrict immigration, the same studies demonstrate that new arrivals have a negative impact on our country.Cost of resettling a refugee: $107,000. Taxes paid by said refugee: $130,00. Saving a human life: Priceless.
I'm no expert, but it seems to me that part of the problem is a lack of data. Where there is a dearth of information, we tend to fill-in the blank spaces with our own hopes and fears. Think of those medieval maps that showed fanciful creatures and fabulous kingdoms just past the borders of the known world.
The most recent attempt to quantify the economic impact of refugees comes from two professors at the University of Notre Dame: William N. Evans and Daniel Fitzgerald. Their paper, The Economic and Social Outcomes of Refugees in the United States, uses data from the U.S. Census Bureau's most recent five-year American Community Survey (2010-2014) to tease out the impact of refugees--as distinct from other immigrants--on the U.S. economy. The website Five Thirty Eight nicely summarizes the report's findings:

[R]esearchers pulled a sample of 18-to-45-year-olds who resettled in the U.S. over the past 25 years and examined how their employment and earnings changed over time. They found that the U.S. spends roughly $15,000 in relocation costs and $92,000 in social programs over a refugee’s first 20 years in the country. However, they estimated that over the same time period, refugees pay nearly $130,000 in taxes — over $20,000 more than they receive in benefits.

The authors found that, when compared to rates among U.S.-born residents, unemployment was higher and earnings were lower among adult refugees during their first few years in the country, but these outcomes changed substantially over time. After six years in the U.S., refugees were more likely to be employed than U.S.-born residents around the same age. The longer they live longer in the U.S., the more refugees’ economic outcomes improved and the less they relied on government assistance. While refugees’ average wages are never as high as the average for U.S.-born residents, after about eight years in the U.S., refugees aren’t significantly more likely to receive welfare or food stamps than native-born residents with similar education and language skills.

Responses to the report were predictable. The restrictionist Center for Immigration Studies questioned the study's methodology (Steven Camarota notes that the authors did not include costs associated with education, incarceration, and law enforcement and looked only at more productive, working-age refugees). The Migration Policy Institute viewed the report as evidence that resettlement agencies help refugees become self-sufficient more quickly. Both points seem worthy of further exploration, and I hope this report will help spark more discussion.
For my part, I have mixed feelings about the study. On the one hand, the whole idea of quantifying the economic impact of refugees seems like a vulgar exercise. We shouldn't be helping such people because we hope to gain a monetary benefit from them. We should help them because it is the right thing to do. Indeed, the notion that refugees should somehow be a financial boon to our economy debases the high ideals of our humanitarian immigration system.
On the other hand (and in the real world), I recognize that it is critical for us to understand the impact of refugees on our country--economically, socially, and in the national security context. The report by Professors Evans and Fitzgerald seems to be a valuable contribution to this effort. Only with more information about refugees can we create rational, fact-based policies. How many refugees and asylum seekers should we admit each year? How well do such people integrate into our community? How can we ease the transition so that migrants become self sufficient more quickly? The more information we have, the better equipped we will be to answer such questions.
To be sure, the economic aspect of refugee resettlement is only one part of the story. But it is important to better understand how refugees are integrating into our economy so we can help improve that process. It is also relevant (at least to some extent) to the debate about how many refugees we should be admitting into our country.
These days I am not feeling overly optimistic about the quality of our public conversation on refugees (or on any other topic). It is far more common to hear hyperbole, falsehoods, and ad hominem attacks in the immigration debate than it is to find sober analysis. But at least in the economic realm, I think this report is significant. It contributes to a mounting body of evidence suggesting that immigrants and refugees help our economy more than most restrictionists would have us believe. It is also a serious piece of analytic work at a time when seriousness is sorely lacking from the discussion.

There’s a quote attributed to legendary DC-lawyer Jake Stein that has helped define my practice as an attorney: “I’ve never litigated a case where I wasn't better friends with my opposing counsel at the end of the case than at the beginning.”Though it may be satisfying, beating up opposing counsel probably violates the Rules of Professional Conduct.
His philosophy may be Old School and--in these days, where being nice to someone you disagree with has become all too rare--almost radical, but I’ve taken it to heart. I try to maintain a congenial and trusting relationship with the DHS attorneys who sit across from me in court. As a result, I believe my clients are better off—and so am I.
The former President of the DC Bar, Tim Webster, touched on this issue last year in an article about the “Balkanization of Lawyers.” What he meant was that we lawyers tend to fall into opposing camps, Us versus Them, and never the twain shall meet. In Immigration World, that means attorneys who represent immigrants and asylum seekers, on the one hand, and government attorneys, on the other.
Mr. Webster laments the division of our profession in this manner, and points out that it is often bad for our clients, who benefit when lawyers are able to “work cooperatively with opposing counsel towards a consensual resolution” of their cases. Perhaps Mr. Webster’s observation is more applicable to civil cases, where a negotiated monetary settlement is the norm, but I think it also applies in Immigration Court. When we have a cooperative relationship with DHS, we are often able to reach better resolutions for our clients. DHS attorneys are more likely to give us the benefit of the doubt, and more likely to stipulate to part (or sometimes all) of a case.
Mr. Webster also argues that the idea of us-versus-them stands in opposition to our core values as attorneys. Under the Rules of Professional Conduct, we are required to be honest and fair--to the client, to other attorneys, and to the tribunal (and also to other people we encounter in the course of our work). When we view opposing counsel or Judges as “the enemy,” it becomes easier to justify behavior that risks violating our obligations under the Rules, which can harm our clients (and land us in hot water).
Unlike perhaps some areas of law, immigration law has a strong ideological component. Many of the attorneys who represent immigrants do so because they believe in human rights and they want to keep families together. For such attorneys—and I include myself among them—our work represents an expression of our moral and/or religious values. In other words, it’s more than just a job; it’s a mission.
Does this make it harder for us to work cooperatively with opposing counsel (DHS)? Is it more urgent that we do so? For me, the answer to both these questions is yes. When our clients’ lives and futures are on the line, it can be very difficult to maintain a cordial relationship with a government attorney who is fighting to have that client deported. But even in the hardest-fought case, there is value in maintaining lines of communication. For example, even where the DHS attorney will not compromise and is fighting all-out for removal, there still exists the possibility of stipulating to evidence and witnesses, and of a post-order stay of removal. Severing the connection does not serve the client (though it may satisfy the ego), and certainly won’t help future clients, and so to me, there is little value in burning bridges, even when I believe DHS’s position is unjust.
All that said, there is no doubt that we will often disagree with our opposing counsel, and that we will fight as hard as we can for our clients. This is also a duty under the Rules of Professional Conduct (zealous advocacy), and for many of us, it is an expression of our deeply held belief in Justice.
With the ascension of the Trump Administration, and its more aggressive approach towards non-citizens, I believe it is more important than ever for us lawyers to keep good relationships with our DHS counterparts. While some government attorneys are glad to be “unleashed” and to step-up deportation efforts, many others are uncomfortable with the Administration’s scorched-Earth strategy. These DHS attorneys (and I suspect they are the majority) take seriously their obligation to do justice; not simply to remove everyone that ICE can get their hands on.
While the environment has become more difficult, I plan to continue my Old School approach. It works for me, it has worked for my clients, and I think it is particularly crucial in the current atmosphere. We lawyers--the immigration bar and DHS--should continue to lead by example, and continue to maintain the high ethical standards that our profession sets for us. In this way, we can help serve as a counter-balance to our country's leaders, whose divisive, ends-justify-the-means approach has no use for the basic principles of morality or comity that have long served our profession and our democracy.